IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISEASTERN DIVISIONLESLIE S. KLINGER, an individual, ) )Plaintiff, ) Case No.: 1:13-cv-01226 ) v. ) Judge: Ruben Castillo )CONAN DOYLE ESTATE, LTD., a business ) Magistrate Judge: Sheila FinneganEntity organized under the laws of the United )Kingdom, ) )Defendant. )

Sherlock Holmes is perhaps the most recognizable fictional character in modern literature.He is the creation of Sir Arthur Conan Doyle, who over a period of forty-one years wrote fournovels and fifty-six short stories creating and developing Holmes

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s character. Of these sixty storiescreating Sherlock Holmes, known as the Canon, the last ten stories are fully protected by UnitedStates copyrights.Not content to wait for the last of these copyrights to expire in 2022, plaintiff Leslie Klingerseeks a declaration that his list of

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Sherlock Holmes Story Elements

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is in the public domain. Whilefifty of Sir Arthur

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s original Holmes stories are indeed in the public domain, Plaintiff

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s list includesmaterial Plaintiff himself admits was created in Sir Arthur

s requested summary judgment.Even more significant, Plaintiff seeks a declaration that the fictional characters of Holmesand Watson are available for all to use. But Plaintiff does not argue for that in so many words or list

on his list of allegedly free story elements. To have done so would have entailed answering the question whether those characters were created strictly in the public domain stories, or whether the characters

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creation continuedthroughout the copyrighted Ten Stories. The facts are that Sir Arthur continued creating thecharacters in the copyrighted Ten Stories, adding significant aspects of each character

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s background,creating new history about the dynamics of their own relationship, changing Holmes

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s outlook onthe world, and giving him new skills. And Sir Arthur did this in a non-linear way. Each of the TenStories is set at various points earlier in the two men

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s lives

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and even late stories create new aspectsof the men

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s youthful character. In other words, at any given point in their fictional lives, thecharacters depend on copyrighted character development.By avoiding the question whether the literary characters were created in part in copyrightedstories, and instead listing parts of the characters from public domain stories (but even here slipping into admittedly copyrighted material) Plaintiff suggests that Holmes and Watson can be dismantledinto partial versions of themselves. But a complex literary personality can no more be unraveled without disintegration than a human personality. While one case and one commentator have opinedthat in a series of works featuring the same character, the character is created in the first story in theseries and enters the public domain along with that first story, those authorities addressed flat,simplistic entertainment characters. Such characters genuinely are created in the first work in aseries, and succeeding works merely put the same character into new scenarios without the charactercontinuing to be formed and developed.No court has yet addressed this issue in the context of a literary character continuously created in a corpus of works. Although basic principles of copyright law apply, the outcome dependson the facts of when and where a character was created. A sufficiently distinct fictional character isrecognized as an independent work of authorship with its own copyright. Such a character might be

3created whole in one story, or might be created in an arc of 100 stories, but that character is a work of authorship separate from the stories. The critical question then is

In what stories were the literary characters Sherlock Holmes and Dr.Watson created

? If the creation of the characters was complete in works published in the UnitedStates before 1923, the characters are in the public domain. If, however, the characters as works of authorship were only completed in copyrighted stories published in 1923 or after, the characters are works of authorship protected by United States copyright law. The present dispute came about because Plaintiff co-edited a collection of short stories by contemporary writers using Sherlock Holmes and materials from the Canon. Plaintiff believedConan Doyle

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s permission was not necessary, but his publisher disagreed and obtained a licensefrom Conan Doyle. The book not only used Holmes and Watson but also used clear story elementsfrom the copyrighted Ten Stories. Conan Doyle learned of Plaintiff

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s plans for a sequel when one of the contributors wrote to inform Conan Doyle that he intended to use one of Sir Arthur

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s fictionalcharacters originating in the copyrighted 1926 story

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The Three Gables.

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Plaintiff nonetheless seeksa declaration that his proposed new book will not violate Conan Doyle

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s copyrights.

ARGUMENTISHERLOCK HOLMES AND DR. WATSON, AS LITERARY CHARACTERS, ARE INDEPENDENT WORKS OF AUTHORSHIP PROTECTED BY COPYRIGHT

Fictional characters who are distinctly delineated have long been recognized as having theirown copyright.

Nichols

v.

Universal Pictures Corp.

, 45 F.2d 119 (1930) (Learned Hand, J.) (holding copyright protection granted to a character if it is developed with enough specificity to constituteprotectable expression). In

Gaiman v. McFarlane

, 360 F.3d 644, 660 (7th Cir. 2004), the court heldthat a stock comic book character was distinct enough to have its own copyright because his

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age,obviously phony title (

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Count

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), what he knows and says, his name, and his faintly Mosaic facialfeatures combine to create a distinctive character. No more is required for a character copyright.